(sitting alone) Ms B Yasmin v Represented by: Ms C Thomas Solicitor Dr N Irshad — 2021

Ms B Yasmin worked as a receptionist from 3 January 2004 until 31 May 2019. In April 2018 she had admitted gross misconduct and, on appeal, the respondent rescinded dismissal and issued a 12-month final written warning from 4 May 2018 stating that any future infraction of practice policy would result in dismissal. The tribunal accepted that in late 2018 and early 2019 the respondent investigated duplicate and additional diazepam prescriptions ordered under the claimant's computer login, and that the claimant accepted she sometimes left her NHS account unlocked or logged in.

The main factual dispute was whether the claimant resigned or was dismissed in spring 2019. The tribunal preferred the claimant's evidence about the March 2019 conversations and found that Mrs Mooney told her the practice wanted her to leave, that she was on a final written warning, and that if she did not resign she could be dismissed. Although the claimant was given time to think and negotiated additional notice, the tribunal found the consistent message was that she had no real choice. When the claimant delayed in providing a resignation letter, Mrs Mooney typed one for her, had her sign it, and told her to give it to the respondent, so the tribunal held that the claimant had been dismissed rather than having freely resigned.

On fairness, the respondent established conduct as the potentially fair reason for dismissal under section 98 ERA 1996. The tribunal held that Mrs Mooney had reasonable grounds for believing the claimant guilty of misconduct and that the investigation was within the range of reasonable investigations. However, the dismissal was procedurally unfair because there was no disciplinary hearing, no opportunity to be accompanied or to prepare and present her case before an impartial chair, and no appeal. The tribunal therefore upheld the unfair dismissal claim.

On remedy, the tribunal reduced the basic award to nil under section 122(2) ERA 1996 because of the claimant's conduct before dismissal. Applying section 123(1) ERA 1996 and Polkey, it assessed the chance of a fair procedure reaching the same outcome at 100%, so no compensatory award was made. The notice pay / breach of contract claim was dismissed because the tribunal held that the claimant was in repudiatory breach of contract and therefore not entitled to the balance of her notice pay.